2022 Supreme(SC) 451

SUPREME COURT OF INDIA
A.M. KHANWILKAR, DINESH MAHESHWARI, C.T. RAVIKUMAR, JJ.
Veerendra - Appellant
Versus
State Of Madhya Pradesh - Respondent
Criminal Appeal Nos.5 & 6 of 2018
Decided on : 13-05-2022

IMPORTANT POINTS
(1) Evidence is only to be weighed and not to be counted – It is essentially, for prosecution to decide as to how many witnesses are to be examined to establish its case on any particular point.
(2) Description of a witness as ‘chance witness’ cannot and will not by itself denude admissibility or relevance of evidence of such a witness if nothing was brought out to make his version suspicious and thereby unacceptable.
(3) Medical evidence – Though opinion of doctor given with support of post-mortem report is entitled to get great weight, court cannot abdicate its function as ultimate opiner.
(4) Medical examination of accused – Positive result of DNA test would constitute clinching evidence against accused – But, a negative result of DNA test or DNA profiling having not been done would not and could not, for that sole reason, result in failure of prosecution case.
(5) Conduct of accused after incident may become admissible under Section 6 of Evidence Act, though not in issue, if it is so connected with fact in issue.

Headnote:

(A) Protection of Children from Sexual Offence Act, 2012 – Section 6 – Indian Penal Code, 1860 – Sections 364A, 376A, 376(2)(i), 302 and 201 – Kidnapping, rape and murder of girl child – Death sentence – Circumstantial evidence – Rarely, death penalty would be awarded if conclusion on connection of accused with offence(s) is fixed based on circumstantial evidence – Even in such cases existence of exceptional circumstances/special circumstances would make death penalty awardable – Cause of death is asphyxia due to throttling – Grave injuries sustained by her on private parts were also sufficient to cause death in ordinary course of nature – Deceased was subjected to rape – Deceased was lastly seen with appellant – ‘Last seen theory’ is certainly applicable in a crime like one on hand which was carried out on sly and in secrecy during night, in absence of availability of any eye-witnesses – Conviction by trial Court was not solely based on “last seen theory” – Confirmation of conviction and sentence by High Court is also not solely based on “last seen theory” – Being related to victim, by itself, is no reason at all to discredit testimony of a witness – Evidence is only to be weighed and not to be counted – It is essentially, for prosecution to decide as to how many witnesses are to be examined to establish its case on any particular point – Description of a witness as ‘chance witness’ cannot and will not by itself denude admissibility or relevance of evidence of such a witness if nothing was brought out to make his version suspicious and thereby unacceptable – Recovery of dead body which was in a concealed condition from an unused and dilapidated building based on disclosure statement of an accused is a crucial incriminating circumstance – Different approach in re-appreciating evidence would have defeated dispensation of justice, as in cases based on circumstantial evidence also it is not quantity of evidence that counts, but it is its quality – Once blood stains were ascertained as that of human origin mere non-detection of blood group would be of no consequence – Despite difference in factual situation exposition of law that on account of mere non-detection of blood group no advantage could be conferred upon accused to enable him to claim any benefit in such situation. (Paras 13, 15, 18, 20, 32, 33, 34, 35.1, 37, 39, 41, 43, 44 and 48)

(B) Indian Penal Code, 1860 – Sections 364A, 376A, 376(2)(i), 302 and 201 – Protection of Children from Sexual Offence Act, 2012 – Section 6 – Kidnapping, rape and murder of girl child – Death sentence – Circumstantial evidence – Cause of death was asphyxia due to throttling – Nature of injuries found on neck of deceased would reveal pressure exerted by appellant on the neck – Fact that victim was a hapless girl aged only 8 years has to be taken into account while considering the question – Intention is a subjective element and every sane person must be presumed to intend result that his action normally produces – Constriction of neck of a girl child aged about 8 years by fingers or palm by a young man aged 25 years, cannot be said to be sans intention to take her life – Viewing in any angle homicidal death would fall either Clause 1 or Clause 4 of Section 300 IPC – There is no reason to interfere with finding of Trial Court, which was confirmed by High Court that appellant is guilty of committing murder punishable under Section 302 IPC – No perversity or manifest illegality with respect to concurrent finding of trial Court and High Court that appellant herein had committed offences punishable under Section 302 IPC, 376(2)(i) IPC and Section 6 of POCSO Act – However, Trial Court considered question of sentence and awarded the same on very same day on which appellant was convicted – ‘Crime test’ and ‘criminal test’ require to be followed before awarding capital sentence, did not gather required attention of trial Court as also High Court – Aggravating and mitigating circumstances were not given proper attention – Appellant had no criminal antecedents and he hails from a poor socio-economic background and also his unblemished conduct inside the jail – At the time of commission of offence appellant was aged 25 years – No reason to rule out possibility and probability of reformation and rehabilitation of appellant – Present case cannot be considered as one falling in category of ‘rarest of rare cases’ in which there is no alternative but to impose death sentence – Death sentence commuted to that of imprisonment for life with stipulation that appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of thirty (30) years – Other terms of sentences awarded to appellant including fine amount and default stipulations also stand confirmed. (Paras 50, 55, 58 and 59)

(C) Constitution of India – Article 136 – Appeal – Scope and ambit – In such an appeal, unlike in a regular appeal, Apex Court would not undertake exercise of an in-depth consideration by way of re-appreciation of evidence – Normally, in such an appeal only in rare and exceptional cases wherein manifest illegality appears to have infected impugned judgment (going by case of appellant) concerned that Apex Court will go beyond stated scope of an appeal by special leave. (Para 5)

(D) Criminal Procedure Code, 1973 – Section 291 – Indian Evidence Act, 1872 – Section 45 – Medical evidence – Evidentiary value – Though opinion of doctor given with support of post-mortem report is entitled to get great weight, court cannot abdicate its function as ultimate opiner – Taking into account ocular and medical evidence and upon their deeper analysis, court has to form and record its opinion as to cause of death for the purpose of finding out whether death involved in a given case is accidental or suicidal or homicidal, in nature – Like any other evidence, expert opinion also requires proper appreciation at hands of Court, though opinion of Doctor given with support of post-mortem report carries great weight, for arriving at rightful conclusion as to question whether death involved is homicidal or not. (Paras 16 and 16.4)

(E) Criminal Law – Asphyxia – When respiratory functions of lungs stop as a result of lack of oxygen, it causes failure of heart due to oxygen deprivation and this mode of death is called Asphyxia – Asphyxia can occur due to external pressure like strangulation, to close air passages – Strangulation is a violent form of death which occurs from constriction of neck by means of ligature or by other means without suspending body and throttling is strangulation by constriction of neck produced by fingers or palms – Post mortem appearance of death by Asphyxia includes numerous petechial haemorrhages seen under serous membranes of various organs due to rupture of capillaries caused as a result of increased pressure in them. (Para 17)

(F) Criminal Procedure Code, 1973 – Section 53A – Medical examination of accused – Positive result of DNA test would constitute clinching evidence against accused – But, a negative result of DNA test or DNA profiling having not been done would not and could not, for that sole reason, result in failure of prosecution case – Non-conduct of DNA profiling in terms of the provisions under Section 53A Cr.P.C., is a flaw in investigation – Fair investigation is necessary for a fair trial – It is duty of investigating agency to protect rights of both accused and victim by adhering to prescribed procedures in the matter of investigation and thereby to ensure a fair, competent and effective investigation – However, solely on account of defects or shortcomings in investigation an accused is not entitled to get acquitted – Lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide fate of a trial for offence of rape especially, when it is combined with commission of offence of murder as in case of acquittal only on account of such a flaw or defect in investigation cause of criminal justice would become victim – Even if such a flaw had occurred in investigation in a given case, Court has still a duty to consider whether materials and evidence available on record before it, is enough and cogent to prove case of prosecution – In a case which rests on circumstantial evidence, Court has to consider whether, despite such a lapse, various links in chain of circumstances forms a complete chain pointing to guilt of accused alone in exclusion of all hypothesis of innocence in his favour. (Paras 22, 23, 28 and 30)

(G) Indian Evidence Act, 1872 – Section 6 – Doctrine of Res Gestae – Essence of doctrine of res gestae is that a fact which, though not in issue, is so connected with fact in issue “as to form part of same transaction” that it becomes relevant by itself – Conduct of accused after incident may become admissible under Section 6 of Evidence Act, though not in issue, if it is so connected with fact in issue. (Para 36)

Facts of the case:

Appellant was arrested on 20.9.2014 at about 04:00 pm. Upon culmination of trial for offences punishable under Sections 364A, 376A, 376(2)(i), 302 and 201 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offence Act, 2012. Appellant, who is a convict - awarded with capital sentence, calls in question the common judgment dated 14.7.2016 of the High Court of Madhya Pradesh, confirming death sentence.

Findings of Court:

Even while commuting capital punishment, the appellant has to be awarded life imprisonment without application of the provisions of premature release/remission for a substantial length of period. On such consideration we are of the view that it would be just and proper to award punishment of imprisonment for life to the appellant for the offence punishable under Section 302 IPC, by providing for an actual imprisonment for a period of 30 (thirty) years without application of the provisions of premature release/remission.

Result : Appeals Partly allowed.